Schuh; Secretary, Department of Social Services and (Social services second review)

This matter concerned an appeal by the Secretary of the Department of Social Services (the appellant) against a decision of the Administrative Appeals Tribunal (the Tribunal) in relation to an overpayment of Family Tax Benefit and Child Care Benefit to Mr. Schuh (the respondent). The dispute centred on whether the debts arising from these overpayments should be written off or waived.

The primary legal issue before the Administrative Appeals Tribunal was whether the debts owed by the respondent to the Commonwealth, arising from overpayments of Family Tax Benefit and Child Care Benefit, should be waived under section 1217 of the *Social Security Act 1991* (Cth). This involved determining whether the overpayments were attributable solely to administrative error by the Department, or whether "special circumstances" existed that would warrant a waiver of the debts.

The Tribunal found that the overpayments were not attributable solely to administrative error. However, it concluded that there were "special circumstances" that justified waiving the debts. The Tribunal's reasoning was based on the respondent's limited financial capacity, his reliance on the benefits, and the fact that he had not been notified of the overpayments until a significant period had elapsed. The Tribunal considered that requiring repayment would cause undue hardship.

The Administrative Appeals Tribunal set aside the decision under review and determined that the debts should be waived.